New AB 1252 (Jones), a second try to give some small businesses who receive a 60 notice an opportunity to cure their failures to warn and avoid a Proposition 65 suit, penalties and attorneys’ fees;

New AB 543 (Quirk), which provides a “get out of jail free” card for a company that receives a 60 day notice but has an exposure assessment showing that the exposure is below the No Significant Risk Level or Maximum Allowable Daily Level;

This week’s Court of Appeal decision in Environmental Law Foundation v. Beech-Nut Nutrition Corp., affirming judgment in favor of the defendant baby-food manufacturer in a Proposition 65 lead case, on the ground that the levels of exposure were lower than those same safe harbor levels.

So stay tuned – we’ll start today with the proposed regulations, right after the jump.

CBL Status report: OEHHA’s Proposed Safe Harbor Regulations

In January of this year, California’s Office of Health Hazard Administration (“OEHHA”), the lead agency for Proposition 65, issued proposed regulations significantly changing the “safe harbor” warnings which are deemed to meet the Proposition 65 clear and reasonable warning requirements.

Veterans of Proposition 65 compliance efforts or litigation know that under the current regulations, the manufacturer or distributor of a product that causes an exposure to a listed chemical can meet its warning obligations by placing the safe harbor language on the product, on its packaging, or on its “labeling,” defined to mean just about any piece of paper accompanying the product. The safe harbor language for listed carcinogens is:

WARNING: This product contains a chemical known to the State of California to cause cancer.

For listed reproductive toxins:

WARNING: This product contains a chemical known to the State of California to cause birth defects or other reproductive harm.

The regulations don’t provide a safe harbor warning for when one product causes exposures to both types of toxins. However, many companies conflate the two, and nobody ever seems to bust them for it.

These and other safe harbor warnings (e.g., for alcoholic beverages, for premises, etc.) have proliferated across the state, to the point that CBL doubts they have much impact on anyone. Indeed, one of Governor Brown’s goals when he first started talking about reforms two years ago was “to provide useful information to the public on what they are being exposed to and how they can protect themselves.”

With that in mind, OEHHA has proposed revising the safe harbor warnings in a number of respects. First, for many products, the following warnings would be deemed clear and reasonable, for carcinogens, reproductive toxins or both:

The yellow icon with the exclamation point would be a mandatory part of the warning. And the contents of the web site have yet to be determined (the URL won’t take you anywhere right now), but will be the subject of another proposed regulation, discussed below.

“So, far, so what?” according to most people. But now it starts to get weird. OEHHA has singled out twelve chemicals / chemical categories for special treatment. These are: Acrylamide, Arsenic, Benzene, Cadmium, Carbon monoxide, Chlorinated Tris (e.g., chemical flame retardants), Formaldehyde, Hexavalent Chromium, Lead, Mercury, Methylene Chloride, Phthalates (e.g., DEHP, DINP and others). For exposures to these, in order to be deemed “clear and reasonable” under the safe harbor regulations, the company would have to identify the chemical by name. So CBL imagines a common safe harbor warning that looks something like this:

But wait – there’s more. Last year, when OEHHA took a flyer on some earlier revisions to the regulations, some companies complained that they could never find room on their products, or their labels, or their packages, to include all of that. So OEHHA responded with an alternative warning scheme for these twelve chemicals and chemical groups. Instead of a warning that’s way too long, said OEHHA, if one of the “big twelve” are involved a company could give one of these warnings. The word “WARNING” must be in no smaller than 10 point type, and the other words must be in no smaller than 8 point type:

Really OEHHA? Those are supposed to be clear and reasonable warnings? Those are supposed to “provide useful information to the public on what they are being exposed to and how they can protect themselves?” Is that so?

Anyway, the public comment on the regulations remains open until April 20, and you can read some of the public comments here. OEHHA has a public hearing scheduled for this coming Wednesday, March 25 at 10:00 a.m. at the Coastal Hearing Room, California Environmental Protection Agency Building, 1001 I Street, 2nd Floor, Sacramento, California. CBL will be there (or at least, one of CBL’s associates will be there), and we’ll provide a full report afterwards. The deadline for public comments is April 8, 5:00 p.m. PDT. Public comments should be e-mailed to P65Public.Comments@oehha.ca.gov, with “Clear and Reasonable Warning Regulations” in the subject line.

CBL Status report: OEHHA’s Proposed Web Site:

So that URL in the warnings above? Here’s what OEHHA has in mind in another proposal:

OEHHA proposes a new regulation establishing an “interactive web site” that would, among other things, include the following:

[I]nformation to the public concerning exposures to listed chemicals, including common routes or pathways of exposure . . . .

[S]trategies for reducing or avoiding exposure to those chemicals . . . .

[R]easonably available information concerning the anticipated level of human exposure to the listed chemical.

OK, so far, that’s all kind of a “meh.” There are plenty of web sites that do all this. But now it gets really crazy, as OEHHA also looks forward to reaching out to companies all over the world and demanding that they provide information for the web site. Because subpart (b) of the proposed regulation proposes that OEHHA (referred to as the “lead agency”) can do the following:

(b) The manufacturer, producer, distributor, or importer of a product, including food, or a particular business that is providing a warning must provide the following information, when reasonably available, upon the lead agency’s request, and within the timeframe specified in the request:

(1) The name and contact information for the person providing the information.

(2) The name and contact information for the manufacturer of the product.

(3) The name of the listed chemical or chemicals for which a warning is being provided.

(4) For environmental warnings, the location of the chemical or chemicals in the area.

(5) For product warnings, the location of the chemical or chemicals in the product.

(6) For product warnings, the concentration (mean, minimum, maximum) of the chemical or chemicals in the final product. If the product contains multiple component parts, the business must provide the concentrations (mean, minimum, maximum) of the chemical or chemicals in each of the component parts.

(7) For product warnings, the matrix, as defined in subsection 25900(g) of this chapter, in which the listed chemical or chemicals is found in the product and the concentration of the listed chemical(s) in the product matrix, if known.

(8) The anticipated routes and pathways of exposure to the listed chemical(s) for which the warning is being provided.

(9) The estimated level of exposure to the chemical or chemicals.

(10) Any other related information that the lead agency deems necessary.

In the Proposition 65 arena, CBL has represented small to medium companies from all over the globe. The idea that they would have the capacity to respond to these kinds of inquiries is, in a word, delusional.

The public hearing on this one is also this Wednesday, March 25, same place (Coastal Hearing Room, California Environmental Protection Agency Building, 1001 I Street, 2nd Floor, Sacramento, California). The deadline for public comments is April 8. Once again, public comments should be e-mailed to P65Public.Comments@oehha.ca.gov, with “Lead Agency Website Regulation” in the subject line.

Our best predictions for all of this: there will be changes It’s too soon to figure out what they will be. They are two+ years away. So stick around..